Citation Nr: 21026241 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 14-20 158A DATE: April 30, 2021 ORDER Compensation under the provisions of 38 U.S.C. § 1151 for an additional back disability due to a fall at a VA examination is denied. FINDING OF FACT The weight of the competent and probative evidence is against finding that a fall at a VA examination caused an additional back disability. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C. § 1151 for an additional back disability due to a fall at a VA examination are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1973 to March 1976. Unfortunately, the Veteran died during the pendency of this appeal. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was before the Board and remanded in May 2018, October 2019, and January 2021. There has been substantial compliance with remand directives and additional remands are not warranted. See Stegall v. West, 11 Vet. App. 268 (1998). In March 2021, the appellant reported that the Veteran injured his back during active service. However, in the May 2018 Board decision, the Veteran’s service connection claim for a lumbar spine disability was denied. As such, only the issue of entitlement to compensation under 38 U.S.C. § 1151 is presently before the Board. Benefits for Veterans Disabled by Treatment Under § 1151, when a veteran suffers a qualifying additional disability or death as the result of hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished by VA, compensation will be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. To determine whether a veteran has an additional disability, VA compares the veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran’s condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. 38 C.F.R. § 3.361(b). A disability is a qualifying additional disability if: (1) the disability was not the result of the Veteran’s willful misconduct; (2) the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran; and, (3) the proximate cause of the disability was (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. 38 C.F.R. § 3.361. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). Further, hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. Id.; 38 C.F.R. § 3.361(c)(2). The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part proximately caused a veteran’s additional disability or death, it must be shown that the care or treatment in question caused the veteran’s additional disability and the VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or the care or treatment was furnished without the Veteran’s informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran’s additional disability or death was an event not reasonably foreseeable is determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). VA treatment records show that in November 2010, the Veteran fell or was lowered to the floor while getting up from the examination table during a VA examination. The Veteran was attending the examination for the August 2010 claimed disabilities of lower back condition, neck condition and spine condition. The appellate asserted that the Veteran sustained an additional back disability due to the fall. The weight of the competent and probative evidence is against finding that the Veteran sustained an additional back disability that was proximately caused by the November 2010 fall. The evidence of record demonstrates that the Veteran experienced significant back pain resulting in impairment of function prior to the November 2010 VA examination. Historically, the Veteran had a laminectomy in October 1982 due to a herniated disc with L5-S1 nerve root impingement on the right. The Veteran complained of low back pain intermittently through the years. October 2009 imaging of the lumbosacral spine revealed mild to moderate degenerative disc and facet disease at L4 through S1. Large bridging anterior osteophytes in the cervical, lower thoracic, and lumbar spine suggestive of diffuse idiopathic skeletal hyperostosis were also present. One day prior to the VA examination fall, the Veteran wrote a statement describing his back condition as causing constant pain and problems when he sits or stands. The Veteran further explained that his back sometimes felt so numb and weak that he cried when walking at times and ended up in a wheelchair because he could not do anything for himself without assistance. The appellate wrote a statement on the same date indicating that she had to bathe, dress, and groom the Veteran. The appellate further stated that the Veteran could not stand very long or get up without assistance, could not bend to put on shoes and could not clean himself after using the restroom. The appellate attributed the Veteran’s functional impairments to a back injury he sustained in Germany in 1974. The Veteran presented to the emergency room with complaints of low back pain shortly after the VA examination fall on November 18, 2010. Straight leg raise was negative bilaterally. An acute lumbar strain was diagnosed with X-ray imaging of the lumbar spine revealing degenerative changes throughout with no acute abnormality. The Veteran presented to the emergency room again on November 28, 2010 with complaints of back pain and tenderness to his lower lumbar spine and bilateral paralumbar regions. The Veteran was noted to ambulatory but slow due to pain. The clinician suspected that the pain was more related to muscle than any sort of bony fracture and diagnosed acute on chronic low back pain. Magnetic resonance imaging (MRI) of the lumbar spine in December 2020 demonstrated spondylosis of the lumbar spine with multilevel disc bulges creating mild stenosis of the canal from L2-L3 to L4-L5, multilevel facet osteoarthritis, and postsurgical changes in the right lamina of L5 with a right laminectomy defect. The Veteran was afforded an in-person VA examination in July 2019. The examiner provided an addendum opinion in October 2020. The examiner opined that the Veteran did not sustain an additional disability to his lumbar spine due to his fall during a VA examination in November 2010. The examiner reasoned that the Veteran displayed tenderness over a larger area of his back and worse lumbar spine range of motion during testing at the November 2010 examination prior to the fall than displayed in July 2019. In addition, in November 2010, the Veteran had decreased deep tendon reflexes bilaterally as opposed to only on the left side in July 2019. The examiner further opined that there was no failure on the part of the VA to timely diagnosis or timely treat the claimed disability that allowed the disability to continue to progress. The examiner noted that the Veteran was evaluated the same day as the fall and was discharged home in stable and satisfactory condition with no need to further escalate care. The record contains medical opinions from July 2019 and February 2021. These opinions are given no probative value to the extent the examiner rendered an opinion regarding the 1982 back surgery rather than the additional disability claimed as a result of the November 2010 fall. The October 2020 examination is found to be competent, credible, and highly probative as it is supported by in-person examination, consideration of relevant medical and lay evidence and clear rationale. In light of the foregoing, the weight of the competent and probative evidence is against finding that the Veteran has an additional back disability due to the fall during the VA examination in November 2010. As there is no additional disability, the Board need not reach the question of proximate causation. The evidence of record does not demonstrate that the Veteran’s back disability worsened or caused additional impairments or limitations as a result of the November 2010 fall. The Veteran and the appellate asserted that the Veteran could not stand for long, get up or do much of anything without assistance prior to the November 2010 fall. In contrast, the Veteran’s gait was normal and steady in July 2011, and the clinician emphasized increasing distance walked slowly over time to a goal of one-half mile daily. The Veteran’s transfer status didn’t decline until March 2012 when the Veteran alerted VA staff that due to ongoing arthritis he could not get himself in and out of the bed anymore. This was followed by the Veteran falling getting into the bathtub and needing help to get out in July 2013. There is no evidence to support the presence of a qualifying additional disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim is denied. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Monica Ball Jackson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.